Sunday, August 14, 2005

BS/Courts: Legal Urban Legends

Quick. What's the number one "frivolous lawsuit" everyone loves to mock?

Riiight. The old lady in the McDonald's drive-thru, who burned herself with the coffee. Now, I never thought this was a frivolous lawsuit—but many persist in believing that it was. And that this woman walked away with millions of dollars for being a clutz. That's because nobody knows what actually happened beyond Jay Leno's jokes or the FOX NEWS asshole misrepresenting it to use as Exhibit A for tort-reform.

Go here for a quick summary of the case. Here are some high(low)lights:

At the trial, it was revealed:

• McDonalds required their coffee kept at 185 degrees Fahrenheit, plus or minus 5 degrees, significantly higher than other establishments. [Coffee is usually served at 135 to 140 degrees]

• An expert testified that 180 degree liquids will cause full thickness burns in 2 to 7 seconds.

• McDonalds knew before this accident that burn hazards exist with any foods served above 140 degrees... that its coffee would burn drinkers at the temperature they served it.

• McDonalds knew of over 700 people burned by its coffee, including many third-degree burns similar to Ms. Liebeck's.

• McDonalds had received previous requests from consumers and safety organizations to lower their coffee temperature.

Evidence showed that McDonalds served their coffee so hot to save money. This let them get away with a cheaper grade of coffee and cut down on the number of free refills they had to give away. McDonalds executives testified that they thought it would be cheaper to pay claims and worker's compensation benefits to people burned by their coffee versus making any of these changes.

Even the trial court judge called McDonalds' conduct willful, wanton, reckless and callous.

Ms. Liebeck tried to settle with McDonald's for $20,000 to cover her medical expenses. McDonalds offered her $800. She sought mediation, but McDonald's refused.

And the "vast millions" this frivolous scammer walked away with? That number was based on two days worth of coffee sales for McDonalds as punitive damages. And she never saw that money, the judge reduced the verdict to less than $600,000.

And what's the second most-cited example of the "frivolous lawsuits" that need to be combatted? According to this story in the LA Times, it's probably fake.

So the famous example is completely exaggerated, and the rest are fabrications. (Just like the estate tax/family farm scam). Just a little something to keep in mind when the President gets back from his month-long siesta and starts his bullshit about tort reform.

[via John Cole and Ezra. The facts cited above are from a link provided by a commenter at Cole's blog. UPDATE: In the comments here, Ted challenges the veracity of those facts. An article in the lawyer-lovin' liberal Wall Street Journal actually bolsters my case. Link.]

6 comments:

There are so many false things in this post, I don't know where to begin.

1) It's not true that "coffee is usually served at 135-140 degrees." Starbucks serves its coffee even hotter than McDonald's does.

2) "700 burns" is one burn in 24 million cups of coffee. Not dangerous.

3) The Liebeck case was frivolous. I've found at least fourteen other courts that have thrown out identical cases of second- and third-degree burns caused by coffee.

4) What's your evidence that the "second-most cited" case for tort reform is the phony Winnebago case? I've never cited it except to point out that it's fake. I've never seen anyone else cite it except to point out that it's fake.

First, no, obviously I cannot vouche for the facts I cited—I merely followed a link—and since I'm just a loudmouth and not a reporter, I didn't verify them against a second source. I'm happy to have Ted's rebuttal, but he doesn't really offer anything for evidence more persuasive than me.

1) I don't know if this is true or not. Assuming it could be: Hotter than McDonald's at the time of this incident? Or hotter than McDonald's new, lowered because of this case, temperature? (The day after the verdict the McDonald's that served the victim's coffee was served at 158 degrees.) Is Starbucks serving that coffee in a drive-thru? And I would certainly contend that Starbucks met the requirements of serving the coffee in a safer cup.

2. According to the WSJ article, this precise point was one of the big losing points with the jury regarding McDonald's defense. I agree with the jury. 700 victims is 700 victims, I don't care how many it is out of. They were warned 700 times.

3. Examples? And why were they thrown out?

4. Valid point. There is no "evidence" or even real intent of fact in my statement. I was just awkwardly trying to transition back to the original story and wrap up my post.

---

I did a little searching and came up with this Wall Street Journal article on the case. It pretty much backs up everything in my original post. One difference—"coffee is usually served at 135-140 degrees." is true for home coffee machines. Many restaurants serve coffee hotter than that (in the 150s), but experts noted the risk of severe burns is exponentially reduced at those temperatures.

Ted, I visited your site. Interesting stuff. Since you have an entire blog dedicated to what you consider "frivolous lawsuits," I hardly can consider you a neutral observer. I will agree that there are frivolous lawsuits out there. But there are several safeguards already built into the system. Judgers can throw them out ahead of time (like the dismissed cases you cite—I can only assume they were without merit, not "identical"). And judges can alter the judgements reached by juries, as he did in this case—significantly.

The big objection corporatists and laymen alike have is the large cash settlements that seem out of proportion to the negligence and/or the suffering. That usually comes in the form of the punitive damages. When you are dealing with a giant corporation with $40 billion in annual sales, a company that admits it considers costs incurred by burning customers and employees a negligible cost of doing business, it might take a large sum to get their attention and to change that equation.

If you don't believe me that other companies (including McDonald's) serve hot coffee, just do a search for "coffee" on Overlawyered.com and read about the numerous post-Liebeck coffee lawsuits.

Coffee is *supposed* to be hot. By your argument, no one should ever be served hot food, no one should ever be allowed to own a dog, etc., because there's some tiny risk they might be hurt. Someone is 200 times more likely to be hit by lightning than be burned by McDonald's coffee. Liability stems only from selling products that are *unreasonably* dangerous, and McDonald's coffee doesn't qualify.

3. Examples? McMahon v. Bunn-O-Matic is the leading case. That case cites several others, and a Westlaw search can find still others. The cases were thrown out because "I injured myself on your hot coffee" is not a sound theory of liability. Again, all of this is documented on overlawyered.com.

4. The Wall Street Journal article was written in 1994. Coffee was served at a low temperature at home in 1994 because most people had crappy coffee machines that couldn't heat coffee any hotter than that. Modern coffeemakers consistently heat coffee to as much as 200 degrees, which is what every coffee manufacturer recommends. Again, look at any manual for a coffeemaker that costs more than a few bucks. Look at the alt.coffee FAQ. Look at McMahon v. Bunn-O-Matic.

I joined a blog devoted to frivolous lawsuits because of my neutral observations of the judicial system. But the only "biased" opinion I've given is the question of *whether* a Liebeck should recover; everything else I've stated is a question of fact that I stand behind.

If McDonald's is selling their coffee "too hot", customers can switch to other vendors that sell cooler coffee. The fact of the matter is that coffee consumers prefer hot coffee, which is why Starbucks, with its 190-degree coffee, is so successful, despite charging three times McDonald's prices.

I am certain that a widely publicized case like the McDonalds one would spur a number of copycat suits. The cases you cite might be of this variety. The fact that they were dismissed indicates, to me, that the system works!

If a case is without merit, it is by definition, frivolous. The one piece of tort-reform legislation that I agree with came from noted trial lawyer John Edwards of all people. This is off the top of my head, but it was something to the effect of a merits-test for cases before they get before a judge, and a penalty for lawyers who bring shit cases to court. Three strikes and you are disbarred—or something.

Limits on awards and all the other crap being aggressively peddled by the Right merely serves to limit liability and create a dangerous cost/benefit incentive for corporations with no resulting benefits to anything but the bottom-line, and no protection for the public.

John Edwards was being disingenuous. When a trial lawyer says "frivolous", he doesn't mean "meritless," like you or I do. He means "brought in bad faith." His proposal was toothless.

I agree that the system is working when the coffee-spill cases are being thrown out. I don't see how you can come to that conclusion though--you thought Liebeck should recover. Why should Liebeck recover and McMahon not recover? Same facts, and, in McMahon's case, the coffee vendor had warning from the publicity from Liebeck's case.

The system *didn't* work in Liebeck's case. Not only did a case get to a jury, but a jury was allowed to award punitive damages when McDonald's hadn't done anything actionable. And, as I note above, it's one thing to say that Stella Liebeck was an aberration. I agree, it was. But ATLA and its supporters don't claim Liebeck is an aberration, they claim it as an aspiration. And a generation of law students is being taught to distort the law like this, and now the LA Times endorses this ludicrous proposition.

1. I worked in the food service idustry - industry standard temp is 190 F. My boss ripped someone a new one on this issue - trust me, I remember well.

2. There are more than 700 car accidents a day. By your definition, cars are too dangerous. That's just plain stupid.

3. "Frivolous" as you and I use the term means (as you said) "without merit". Lawyers love to useee that trm, because in LEGAL jargon, it means "brought in bad faith" (which is REALLY hard to prove). That means, they can bandy suggestions around for what to do about "frivolous" lawsuits, and people love it... not realizing that it will, at best, weed out the really, really stupid lawyers (and, with all that schooling + the bar exam, there aren't that many to begin with).

The "facts" of the case are that Ms. Liebeck wwas in the front passenger seat; she took the lid off of the coffee and put the cup between her legs; her son (I think - male relative of some kind) started driving, and the coffee spilled on her.

This is supposed to be McDonald's fault?

It's a shame, what happened. Terrible, really.

But there are terrible things all the time - that doesn't justify taking someone else's money.

Millions of cups of coffee are served everyday, and the vast, overwhelming majority of them managee to be consumed without hurting anyone. The average kitchen knife is more dangerous (and England is thinking about banning pointy kitchen knives...).

McDonald's primary sins were not appearing sympathetic and using big words ("statistically insignificant danger" doesn't mean "we don't care that you hurt yourself", it means "this is a safe product".).

And it's not just "punitive" damages that are the problem: "pain and suffering" (or some derivation) is a pretty big problem, too. "You killed my dog, and I couldn't sleep for a month from grief! That'll be $10 million!"

The Liebeck case is the frivolous case everyone loves to mock because it is A) memorably stupid, B) everyone is familiar with both both Mcdonalds and coffee, and C) it's TRUE.